New Hampshire Supreme Court Reaffirms Position that Attorney for Testator owes no duty of Care to potential Beneficiary Under an unsigned Will


The New Hampshire Supreme Court has affirmed the decision of a lower court, dismissing a legal malpractice claim against a lawyer and her firm, who allegedly failed to secure the execution of a will, just prior the death of the testate. The case is Riso v. Dwyer, Hillsborough northern judicial district, Case No. 2015-0361, decided on March 18, 2016.

Beatrice Riso, the Plaintiff’s mother, was 90 years old when she hired the firm. Sh had five children, but had disinherited two of the children in a prior will, leaving her estate equally to the three remaining children. Her son, Gregory, the Plaintiff was one of the three. In February, 2012, she hired Maureen Dwyer and her firm to redraft the will to exclude the other two sons, whom she thought had deceived her with respect to their intentions if they inherited.

Beatrice and the Plaintiffs met with Dwyer on February 28, giving her the necessary information in order for her to draft the will. Beatrice. Beatrice told the attorney that she wanted to execute the new will by March 2, 2012. She also gave her a letter from her physician stating that she was mentally competent to make decisions. The will was not executed by March 2, and soon after, Beatrice was hospitalized.

Beatrice died on March 10, without any further contact with the attorney and without executing her new will. The plaintiffs filed a negligence claim against Dwyer and her firm, alleging that the defendants had breached their duty of care by failing to execute Beatrice’s will promptly.

The defendants moved to dismiss, relying on a prior decision, Sisson, 148 N.H. at 509, where the Court had established that an attorney had no duty of care to the intended beneficiary under an unsigned will because to do so would create a potential conflict of interest. The plaintiffs asserted that their case was distinguishable from Sisson because Beatrice had committed to a specific date to execute her will without any suggestion that she would not change her mind. The trial court rejected the theory and dismissed.

On appeal, the plaintiffs again argued that their case differed from Sisson because Beatrice had indicated her desire to have her will executed by a date certain, and because her determination to disinherit four of her children eliminated any potential conflict. The Supreme Court conducted a  contractual analysis, and recognized the general need for privity to enforce contractual rights, with certain exceptions, including those where it was evident that there was an intended third party beneficiary to the contract.

“In order to determine whether a duty exists, we examine the societal interest involved, the severity of the risk, the likelihood of occurrence, the relationship between the parties, and the burden upon the defendant. Hungerford v. Jones, 143 N.H. 208, 211 (1998). Ultimately, we weigh the social importance of protecting the plaintiff’s interest against the importance of immunizing the defendant from extended liability.” Sisson, 148 N.H. at 506.

The Court then rejected the plaintiffs’ argument that the facts indicated that Beatrice would not have changed her mind, thereby eliminating any potential conflict. Rather, the Court found that it was the “potential for conflict that is determinative, not the existence of an actual conflict,” Sisson, at 509, which continued to exist until the will was actually executed. The Court refused to place an attorney in a “quandary” whenever the client had a change of mind.

The Court affirmed, concluding that “even if we were to agree with the plaintiffs that Beatrice’s “certainty” eliminated the potential for conflict as to who her beneficiary would be, that would not eliminate the potential for conflict as to some other aspect of her estate plan.” The Court thus concluded that the attorney defendants did not owe a duty to the plaintiffs.



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